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How long is your work day? The attorneys I see slaving away over their files, your humble lawyer/blogger included, often put in ten to twelve-hour days, sometimes including evenings and weekends. And, unless there is some extensive and complicated conspiracy amongst all the adjusters dealing with California workers’ compensation, the adjusters are seeing similar hours and overflowing work load. Often enough, I hear surprise on the other end of the phone when a 7:00 am phone call is answered, but if you’re at work and making the call, why wouldn’t I be at work and taking it?

LinkedIn discussions place the problem with third-party administrators, underbidding and then overworking their employees, but the blame can be placed on the industry – higher costs, lower business revenues, and a worse situation for all involved. A recent study by the Finnish Institute of Occupational Health and the University College of London, draws a link between overtime work and depression and higher risk of coronary heart disease.

Why should this matter for the workers’ compensation defense community? Well, for one, we should all be keeping an eye on our own health (remember those New Year resolutions that have yet to gather the dust of a single month?) Another reason this matters is that, if true (and even if it isn’t), you can expect to see psyche claims based on overtime, especially if the scent of layoffs is in the air.

Recently, we saw a case in which an applicant was awarded treatment and PD for a psyche “injury” because he couldn’t keep up with the requirement of using computers to do his work. How long before we see regular claims for being asked (or volunteering) to work overtime?

Picture the applicant giddy at the prospect of earning more money through overtime pay, then collecting benefits after filing a claim based on being asked to work overtime.

Your loyal blogger seems regularly at odds with panel decisions on the meaning of Labor Code section 5412, specifically as to the term “in the exercise of reasonable diligence should have known.”

In your blogger’s simple and straightforward world, the statute means what it says. So, for example, if you pick up a box at work, feel a sharp pain in your back, and then your back hurts from that point on, the exercise of reasonable diligence quickly helps you connect the dots – one does not need a rocket scientist, a brain surgeon, or even a chiropractor to conclude that the disability flowing from that instance is industrial. But enough of Grinberg’s world, back to the world of California Workers’ Compensation.

In the case of Bertha Chan v. Carl Karcher Enterprises, the panel came down in favor of the applicant.

Applicant was allegedly enduring a campaign of physical and verbal sexual harassment by her immediate supervisor, when her employment was terminated in December 2007. Applicant then filed an application one month later, alleging psychiatric injury as a result of the alleged harassment.
The treating physician and the Panel Qualified Medical Evaluator both found industrially caused injury. But what about Labor Code section 3208.3(e)?

A cumulative trauma can’t be sudden;
There was no notice to the employer of the injury;
There was no medical record of the impairment prior to the claim;
The trier of fact specifically found there was no sexual harassment; and
The exercise of reasonable diligence would have lead applicant to conclude that whatever impairment she had sustained was industrial.

After all, either applicant had sustained an impairment or she hadn’t – if she had, it happened at work before being fired; if she had not had any impairment by the time her employment was terminated, then something other than work caused it.
Assuming she had sustained some psyche injury prior to the termination of employment, then how could physical and verbal sexual harassment on an ongoing basis not be linked to the impairment?

Your garden variety defense attorney is thus forced to watch logic prove a blunt tool in situations such as these. It is worth noting that the defense attorney in this case, in the filed answer, acknowledged that there was no evidence presented at trial of the concurrence of applicant’s disability and knowledge of the industrial causation of the injury. But actual knowledge isn’t the standard; the standard is known or should have known. The defense has petitioned for reconsideration. I hope you will join me in waiting to see if, perhaps, some new life could be breathed into this defense.

This is an interesting one, but it takes some clarity of thought to keep the party names straight. Given that today is Friday, your ever-accommodating blogger simply replaced the names with party 1, 2, 3, etc.

Applicant is employed by Party 1, and sustains injuries to his back with three specific dates of injury and one cumulative trauma. Applicant later leaves the employ of Party 1 and goes to work for Party 2, for whom he is still employed roughly two months later when he sustains another injury in a vehicle accident.

The Agreed Medical Evaluator on the case opines that 65% of applicant’s impairment was caused by the injury sustained while working for Party 2, and the remaining 35% spread out among the injuries sustained while working for Party 1. With me so far?

Party 1 – 4 orthopedic injuries – 35% impairment causation

Party 2 – 1 orthopedic injury – 65% impairment causation

Applicant then amends his claim to include a psyche injury based on the orthopedic injuries.

The psyche AME concurs with the orthopedic AME in terms of causation. So Party 1 and Party 2 raise their respective defenses.

Party 1 claims that the injuries sustained while applicant was in its employ are not the “predominant cause” of applicant’s psyche injury, as required by Labor Code section 3208.3(b)(1), and Party 2 claimed that applicant had not been employed for six months at the time of his injury, as required by Labor Code section 3208.3(d).

The Workers’ Compensation Judge knocked out the defense of Party 2, presumably because of the “sudden and extraordinary employment condition,” to wit, a car accident, that is not reasonably to be expected from landscaping work. But, the WCJ did acknowledge and approve of Party 1’s “predominant cause” defense.

Just a thought – let’s say applicant worked for four employers, one after another, and sustained an injury while working for each one. If the evaluating physician apportioned 25% causation to each employer from the inevitable psyche injury, would the “predominant cause” defense bar the claim?

If the answer is yes, then no matter how legitimate the claim or debilitating the injury, the fact that multiple employers contributed to the impairment would help prevent liability for any of them. A worthwhile defense to explore in similar circumstances, and a reason for multiple employers to pool their resources and spread causation out thinner than “predominant cause” can tolerate.

On Tuesday, your blogger expressed sympathy in reporting the town of Isleton, California, which lost its police department because it could not afford workers’ compensation insurance. Today, that same blogger reports with outrage the stories coming out of Bell, California.

Bell, California, made news some time ago when it was discovered that its city officials were looting the public treasury, voting for high salaries for themselves at the expense of the city’s tax payers. The city became even more (in)famous after being mentioned by this (someday will be) widely-read blog.

As the L.A. Times reports, “[m]ore than half of the disability retirements awarded to police officers under former Bell City Administrator Robert Rizzo – including those given to three police chiefs – should not have been granted, and workers’ compensation settlements for 13 officers were ‘exceedingly large.’”

Bell, which is self-insured for workers’ compensation, pays the extra awards out of its own withering pockets.

Bureaucracy allows these cases to fall through the cracks, and local governments such as cities and counties must be especially careful to make sure undeserved workers’ compensation awards are not handed out as a bonus or going-away present to law enforcement officers.

But the same rule applies to private self-insured employers and insurance companies as well – it not uncommon for employees to attempt to pad their retirement accounts with un-taxable workers’ compensation pay-outs on the way out the door.

When the citizens of Isleton ask why they can not have a police department, perhaps the citizens of Bell can provide them with an answer.

In a continuing effort to make your life easier, an applicant’s attorney is claiming that a treating physician’s recommendation of medical treatment, in this case in-home care, dates back to the date of injury, five years ago!

What are you to do?

Well, in a turn that has left your somewhat-less-now-than-before cynical blogger a bit surprised, a Workers’ Compensation Judge and the Workers’ Compensation Appeals Board have sided with justice, fairness, and (the third of this wonderful trio) the employer!

In the case of Gloria Arana v. HawthorneSchool District, a teacher’s aide sustained an injury in the year 2000 which, after a surgery in 2002, rendered her 100 percent permanently disabled.

The treating physician, and it appears there were no qualified or agreed medical evaluators used in this case, recommended in-home support eight hours per week and out-of-home support, such as grocery shopping, four hours per week. This was a 2007 report, and the treatment recommendation was for 2002 and ongoing.

Defendant was faced with a demand for reimbursement of roughly 3000 hours of home care, and the continuing award of treatment for the “foreseeable future.”

The defense did not dispute the obligation to provide medical treatment in the future, but naturally objected to liability for treatment “prior to the date of a medical report establishing [the medical treatment’s] need.”

Any other result would have been ridiculous – the employer would have had no opportunity to contest the necessity of the medical treatment, negotiate a cheaper price from one of its providers, or rely on any of the other defenses usually available in such situations. Unfortunately, history has shown that a preposterous result is not one to make the workers’ compensation system flinch.

Let a full-fledge WCDefenseCA salute issue to the WCJ and the WCAB for their wise and proper decision in this case.

Have you ever heard of Isleton, California? It is a small town in Sacramento County with a population of roughly 800 people. Recently, the town lost its police department because it allowed its workers’ compensation insurance to lapse – its previous coverage was canceled after some time of failing to pay.

The town just doesn’t have the money.

Efforts are being made to find a new policy, but until one is in place, the town must rely on Sacramento County Sheriff’s deputies as its police force.

Many cities self-insure, but this takes at least some funds as well, and if there’s no money, there’s no money.

When a California business must close its doors because regulatory costs are too high, such as the costs of workers’ compensation insurance, the business disappears and the effect of “out of sight, out of mind” renders it quickly forgotten.

When a city can not afford workers’ compensation for its police force, the city lingers and the effects are witnessed by all. Perhaps this is a good opportunity for the neighboring city of Sacramento, overflowing with fine statesmen and skilled legislators, to fix the problem (and quickly) or at least come to grips with the fact that a problem exists.

Applicant Massoud Kaabinejadian sustained a devastating psychiatric injury and was then persecuted by his employer for reporting said injury, which resulted in him courageously and rightly filing a workers’ compensation claim and a Labor Code section 132a petition as well.

He was so righteous and justified, he needed no attorney to plead his case. To his shock and dismay, and to the shame of California’s workers’ compensation system, his case failed because of one missing and yet totally unnecessary element. As discovery and trial revealed, Mr. Kaabinejadian’s case lacked that hairline tether connecting his legal theory to the law.

In the case of Kaabinejadian v. Rabobank and Chubb Group of Insurance Companies, applicant was hired as a senior vice president of credit at employer Rabobank. Applicant’s job was to review loan applications and make recommendations to approve (or not approve) the loans.

After several months of friction in which applicant repeatedly denied loans previously approved by subordinate loan officers, applicant’s superiors decided that it was time to let this less-than-six month employee go. At the time of this decision, applicant was already scheduled to meet with his superiors at another office location to participate in new-employee interviews. His superiors decided to terminate his employment at the time of his arrival, rather than have him make a separate trip or to go to his office location.

The Workers’ Compensation Judge first noted that applicant was pleading his psychiatric injury as a cumulative trauma, allegedly incurred from the first day worked (April 3, 2006) to the last day worked (July 5, 2006) and “continuing thereafter.” Given that this provided less than six months of employment, the WCJ correctly reasoned that applicant’s psyche claim could only proceed if it was the result of a “sudden and extraordinary employment condition,” which a cumulative trauma could not be.

In other words:

–it can’t be a generic psyche injury because applicant was not employed for at least six months, so his claim was barred by Labor Code section 3208.3;

–it couldn’t be “sudden and extraordinary” because it was a cumulative trauma; and

–if it was a specific injury and incorrectly plead as a cumulative trauma, the only specific injury could have been the termination of employment, which the WCJ described as part of “normal, regular or routine exchanges between employees and the employer … [b]assically, [applicant] was particularly upset and offended by the way in which he was terminated.”

Regarding the 132a claim, the WCJ reminded applicant that the burden is on the employee to prove discrimination, and documentation established the pre-existing intent to fire applicant well before any claim of injury was made.

The Workers’ Compensation Appeals Board was no more generous with defendant’s money than the WCJ had been, denying applicant’s petition for reconsideration and incorporating the WCJ’s report.

Your ever-researching blogger recently came across an opinion in which the weight of an applicant’s testimony and a treating physician were pitted against the opinions of a Qualified Medical Evaluator.

Amalia Anaya was awarded 73% permanent disability following a 1997 injury to various body parts while employed by the City of South Gate. Applicant filed a timely petition to reopen for new and further disability, but after years of litigation and several evaluations, a qualified medical evaluator found applicant to have sustained no new and further disability, to be again permanent and stationary, and to, quiet possibly, have improved since her 2000 award.

Applicant testified that she had in fact sustained new and further disability, and her treating physician (who apparently thought himself a vocational rehabilitation expert) gave the opinion that Ms. Anaya was not trainable to perform other work and could not perform the work previously done because of her injury.

The Workers’ Compensation Judge relied on the QME’s opinions in denying applicant an award of any further disability (applicant had claimed she was now permanently and totally disabled).

In reviewing the decision after applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that “applicant has the burden of proving new and further permanent disability, but her testimony is insufficient to meet that burden.” Moreover, a treating physician’s conclusions regarding the prospects of training and employability are not substantial evidence – one must retain a vocational rehabilitation expert for such evidence.

Although the WCJ did award some temporary disability, the WCAB denied applicant’s attorney’s request that the attorney’s fee be paid out of the TD.

This is not a groundbreaking decision by any means, but it does provide some foundation for fighting claims of PTD, which can be disastrous for various reasons. A lifetime supply of temporary disability payments, an attorney’s fee paid up front based on a universal life-expectancy chart, and, as always, those drops of blood in the water that send the rest of the sharks into a frenzy.

WCDefenseCA sends hearty congratulations to the City of South Gate for this victory.

No one likes a double-dipper, as your humble blogger’s oft-referenced show clearly pointed out. Workers’ compensation, in particular, suffers double-dippers not at all! A Redlands man is being charged with just that – not soiling the salsa or contaminating the punch, but working while receiving disability benefits.

Andres Gonzalez, according to InstantRiverside.com, is being charged with collecting disability benefits after (allegedly) sustaining an injury while working for a small business, while, at the same time, working as a self-employed gardener. It appears that Mr. Gonzalez may have “misrepresented his abilities to work and to perform certain tasks.”

Mr. Gonzalez was arrested and is out on $50,000 bail. The arraignment is scheduled for March 1.

As your ever-justice-thirsty blogger has remarked in the past, these fraud cases are a lose-lose for the law-abiding citizenry. By the time of the arrest, a fraudster will have already spent his or her money, or, in the alternative, use that money to fund his or her criminal defense. In either case, that employers, insurers, and law enforcement budgets will never see that money restored. Usually, a substantial portion of jail time is given away in exchange for a tiny portion of the money in restitution.

Hopefully, when fraudsters file claims in the future, past fraud convictions can be used to shut them out.

As always, I wish the San Bernardino County District Attorney’s Office good hunting in catching these folks and pulling the ticks out of the sides of employers and insurers.

Will Mr. Gonzalez’s employer still see an increase in its workers’ compensation insurance premiums, if the injury turns out to be a fraud? Does anyone know? Just curios: gregory@grinberglawoffice.com.

The panel qualified medical evaluators lined up on one side of the gym, the workers’ compensation attorneys on the other, each afraid to move lest they be accused of cootiesex parte communication.

You see, the Alvarez decision didn’t tell the world of workers’ compensation exactly what is, and what is no, ex parte communication of the sort that would trigger a Labor Code section 4062.3, but instead said that “an [ex parte] communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.”

For a while after the Alvarez decision, defense firms (and possibly applicant’s offices) were walking on egg-shells. If sending a letter by facsimile to the panel QME, make sure to fax it to the applicant’s attorney first, and keep a confirmation receipt of both! It’s silly – an immaterial communication having nothing to do with the substance of the case, often times enough conducted by support staff on both ends.

Who wants to be the first to ask one of the girls to dance?

A recent panel opinion (Lewis Cunningham v. County of San Bernardino (2011) 14 WCAB Rptr. 14, 012) concluded that at least three forms of communication between a panel QME and an applicant’s attorney did not trigger a right to a new panel:

1) a communication to obtain a copy of an echocardiogram report;

2) a communication to facilitate scheduling a deposition; and

3) a communication to facilitate re-scheduling a deposition.

No doubt the limits of “insignificant and inconsequential” will be explored further in the future, perhaps with some binding authority providing a list. In any case, so long as the matter remains uncertain, more litigation and more expense will follow.

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The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 650-235-4008.